June 1, 2018

Comprehensive Care Physical Therapy, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50848(U))

https://www.beynensonlaw.com/case-law/comprehensive-care-physical-therapy-p-c-v-allstate-ins-co-2018-ny-slip-op50848u/

Court: Appellate Term, Second Department
Decided: June 1, 2018
Citation: 2018 NY Slip Op 50848(U)
Posture: Summary judgment
Outcome: Split result
Issues: IME no-show Timeliness and preclusion Provider's prima facie case
Legal questions: No-show: coverage defense or precludable? · Claimant's prima facie case on motions · Proof of mailing (see the maps)

Cite as

Comprehensive Care Physical Therapy, P.C. v Allstate Ins. Co., 2018 NY Slip Op 50848(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer failed to establish timely mailing of denials supporting its IME nonappearance and fee schedule defenses. Its affidavits did not sufficiently describe an office mailing practice ensuring timely mailing. It therefore failed to show that those defenses were not precluded; the fee schedule claim concerned services rendered before April 1, 2013, with the court comparing 11 NYCRR 65-3.8 (g) (1) (ii). The provider also failed to establish that the claims were not timely denied or that timely denials were conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion dismissing all ten causes of action and affirmed the denial of the provider's summary judgment motion.

Reported in New York Official Reports at Comprehensive Care Physical Therapy, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50848(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Comprehensive Care Physical Therapy, P.C., as Assignee of Campbell, Latoya, Appellant,
against
Allstate Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Peter C. Merani, P.C. (Eric M. Wahrburg of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered November 23, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the first through ninth causes of action on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs) and the tenth cause of action, for services rendered prior to April 1, 2013, on the ground that it sought to recover an amount in excess of the workers’ compensation fee schedule.

Plaintiff correctly argues that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As defendant did not demonstrate that it is not precluded from asserting its [*2]defense that plaintiff’s assignor had failed to appear for IMEs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), or its fee schedule defense (cf. 11 NYCRR 65-3.8 [g] [1] [ii]), defendant is not entitled to summary judgment dismissing the complaint.

Contrary to plaintiff’s further contention, the affidavit plaintiff submitted in support of its motion failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). As a result, plaintiff’s motion for summary judgment was properly denied.

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018

Legal questions (3)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

No-show: coverage defense or precludable?

Open the full map

Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?

This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial

Denied the insurer summary judgment on its IME no-show defense because it did not prove timely mailing of the denials and thus did not show it was not precluded from asserting the defense.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followed

Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (this one included) are in the same category.

Claimant's prima facie case on motions

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On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider's affidavit failed to establish that the claims had not been timely denied or that timely denials were conclusory, vague or without merit, so its motion was properly denied.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

Proof of mailing

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Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice

Held the insurer's affidavits did not sufficiently describe a standard office practice or procedure ensuring the denial of claim forms were timely mailed.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 260 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Similar decisions

Comprehensive Care Physical Therapy, P.C. v State-Wide Ins. Co. (2017 NY Slip Op 51448(U))The insurer's affirmation established the provider's failure to appear for EUOs on the five claims at issue on appeal.
Compas Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 51356(U))The insurer failed to establish timely mailing of the denials supporting its EUO nonappearance defense.
Gentlecare Ambulatory Anesthesia Servs. v Allstate Ins. Co. (2018 NY Slip Op 51607(U))The insurer failed to establish timely denial mailing, and the provider failed to establish prima facie entitlement to payment.
Mind & Body Acupuncture, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50779(U))The insurer failed to establish timely mailing of its denials asserting that the provider's charges exceeded the fee schedule.
All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2013 NY Slip Op 50307(U))The insurer failed to prove timely mailing of IME scheduling letters and therefore failed to establish tolling of its claim deadline.